Removing a Personal Representative

A personal representative is the person appointed by the probate court to administer a decedent's estate and distribute the assets. If the decedent left a will, the court usually appoints the person chosen in the will. Where there is no will, the court selects a personal representative based on a statutory order of preference. In general, any competent adult who is a Florida resident may serve. As a beneficiary, you may be unhappy with the court's appointment and wish to have the personal representative removed. Florida's probate code provides you with a mechanism for doing so, if you can satisfy the court that one of the statutory grounds for removal exists.

Who can apply for removal?

Under the probate code, any "interested person" may apply to the court. An "interested person" is someone reasonably expected to be affected by the outcome of a proceeding. If you are a beneficiary, you would likely qualify unless you had already received a complete distribution of your inheritance.

Statutory grounds for removal

A personal representative may be removed for any one of the following reasons, among others:

mental or physical incapacity, making them incapable of discharging their duties

non-compliance with a court order

failing to account for the sale of estate property or to produce the estate's assets when required to do so

poor administration or wasting of the estate's assets

felony conviction

conflicting or adverse interests (e.g. when the personal representative has a claim against the estate) which could interfere with the administration of the estate, except in the case of a surviving spouse with regard to the exercise of the right to the family allowance, elective share or exemptions

proof of revocation of the will under which the personal representative was appointed

While some grounds, such as a felony conviction, may be quite easily proven, others (such as poor administration) can be more difficult to prove.

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Answer: Without a last will and testament, you are relinquishing control over how your assets will be distributed and giving that power to the state of Florida. A will is a legal document providing a set of instructions to the court regarding how your real property and personal property should be distributed. A valid will, thoughtfully prepared by you with the advice of wise counsel, minimizes family conflict over your estate because the will clearly states your wishes.

Question: Do I need an attorney to write my will?

Answer: The laws relating to estate planning and wills are complex. Florida, like every other state, has its own set of rules on how a will should be drafted and signed. If a will is not written correctly and executed properly, it may not be admitted to probate. An experienced attorney from Gierach and Gierach, P.A. can help you draft a valid will that truly expresses your wishes and satisfies all formation requirements.

Question: What is probate?

Answer: Probate is the legal process of the administration of your estate after your death. A will must be submitted to probate court to be executed upon the testator's death. A probate judge examines the will for flaws and decides whether or not it satisfies the requirements of a proper last will and testament under Florida law.

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Gierach and Gierach, P.A. is located in Orlando, Florida and serves clients in and around Orlando, Winter Park, Winter Garden, Maitland, Goldenrod, Casselberry, Altamonte Springs, Orange County and Seminole County.

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